A disturbing challenge has been launched by trophy hunters in the Constitutional Court objecting to the definition of animal wellbeing included in the latest set of amendments to national environmental law.
The South African Hunters and Game Conservation Association’s case is against the President , the government, the National Assembly (NA) and the National Council of Provinces (NCOP) in which the applicant wants the country’s apex court to declare that Parliament has failed to comply with its constitutional obligation to facilitate public involvement in respect of the National Environmental Management Laws Amendment Act 2 of 2022 (“NEMLA Act”). It takes issue with four new provisions, primarily the definition of “well-being” in section 43c. It wants all four sections “impugned” and “declared invalid and unconstitutional.”
At the heart of the case is the applicant’s insistence that:
“the definition of “well-being” in the NEMLA Bill … was materially amended by the NCOP following a flawed public participation process. After being materially amended by the NCOP, the amended NEMLA Bill was referred back to the National Assembly. The NA then passed the amended NEMLA Bill in circumstances where it was well aware of the flaws in the public participation process at NCOP level. …”
The implication of the amendments is that they effectively amend the Biodiversity Act, and the applicant asserts that this is a problem because the amendments are “material.”
The applicant is a modern iteration of the “erstwhile Transvaal Hunters Association”, whose objectives are “to promote the interest of hunters, sport shooters, game farmers, nature conservationists and professional hunters in South Africa and to provide excellent service to all its members…” Presumably the request to have the “impugned” clauses removed from the law are part of this service.
Animals not Faunal Biological Resources
After delineating the purported economic value of its represented sector, the applicant argues that the definition of “well-being” in the final version of the amendment Bill is substantively different to the version that first came through the NA. It correctly notes that the subject matter of “well-being” was changed from a “faunal biological resource” to an “animal.” One imagines this is because it can be clear to exactly nobody what a “faunal biological resource” is, other than an attempted reduction of living, sentient beings to a mere ‘resource’.
Nonetheless, the applicant argues that the definition of an animal is “extremely broad”. It further argues that the qualitative properties associated with animal well-being had changed from objective standards of their “living conditions” to being “conducive to its health”. Indeed, the applicant is of the view that having regard for “the holistic circumstances and conditions conducive to its [the animal’s] physical, physiological and mental health and quality of life, and ability to cope with its environment” is “subjective and scientifically irrational.”
Accompanying the application is an affidavit by Roelof Frederick Camphor, who is the Chief Executive Officer of the applicant organisation. In rhetorical flourish, he asks how the mental health of an animal is to be considered or assessed, and whether there is a difference in consideration of the well-being of an impala whether it is hunted by a lion or a human. It would seem, then, that Camphor would have accepted having to consider the living conditions of a ‘faunal biological resource’, but not anything to do with an animal’s mental state at the prospect of impending death or ability to cope with cruelty even long prior to death. One must also surely then also ask how the living conditions of a faunal biological resource were to be assessed under earlier clauses of the Amendment Bill.
Duty of Care Towards Animals
On the impala hunting question, while it looks ridiculous, there is something serious going on here. It looks ridiculous because the purpose of our biodiversity law is to give effect to Section 24 of the Constitution, which emphasises ecological sustainability over ‘use’, while‘use’ of an ecological resource has to be justified in light of the overarching goal of environmental protection for present and future generations. A lion hunting an impala in the wild is exactly what you’d expect to see for advancing ecological sustainability. But a human hunting an impala is a different story. And a human hunting an elephant even more so. These are questions about our duty of care towards animals and whether it is legitimate to kill them for sport or meat.
That the applicant was apparently happy with the term ‘faunal biological resource’ exposes the propensity to reduce an animal to an object which can then be hunted or culled at man’s discretion. It follows that the applicant would be concerned that the new definition may allow the minister to “prohibit the reduction of animal numbers for the purpose of conservation”. Even that phrase is loaded with a presupposition that there are times when such ‘reduction’ is required for conservation ends. It might be that such reduction is required on rare occasion, but the new definition of well-being creates grounds for serious thought to be applied beforesuch decisions are made. Elephant culling in South Africa, for instance, was a disaster, not least because it destroyed the humanity of those carrying out the culling. We should indeed give serious consideration to elephant well-being to avoid such a decision ever being made again.
For evidence that the applicant seems pre-committed to not wanting to face difficult questions associated with hunting and culling, Camphor refers to comments provided to the DFFE by the applicant in September 2022:
“… Use of the term “well-being” in relation to animals in the definition of sustainable use is problematic when applied to management interventions such as culling, hunting, control of damage causing animals and management of alien invasivespecies, as it refers to conditions of an animal which are conducive to its physical, physiological and mental health and quality of life, including its ability to cope with its environment. This is relevant to living conditions of an animal and may compromise the lethal use and control measures required in adaptive wildlife management. We recognise that animal welfare is important, but the current framing of welI-being is likely to threaten the growth of the wildlife economy and its associated benefits for conservation as well as the economy in many ways, as explained in our comments.”
This demonstrates that the applicant wants to justify culling and hunting on the grounds of “adaptive management” and does not want to have to face hurdles that may impair “the growth of the wildlife economy.” Camphor draws on a 2016 study, which puts the value of trophy hunting at R1.956 billion and “total value of game meat” from culling (not biltong hunting) at R612 million (presumably per annum).
But there are myriad problems with the wildlife ranching sector, including its persecution of apex predators, genetic impairment due to intensive breeding and poor payment of staff (the 2016 study reference by Camphor estimates median salaries at R3,441 a month). It employs an estimated 65,172 people. By way of contrast, a 2019 biodiversity study estimated non-consumptive biodiversity-based tourism jobs at 91,836. Parts of the ranching industry have also defended cruel practices such as captive lion breeding and exploitation.
It is not hard to understand why an industry body whose members’ activities pose several problems for wildlife conservation – despite being a purported champion thereof – would reject the wellbeing definition and associated requirements of the NEMLA Act. One would have thought it might be wise not to show in such stark terms that the industry represented by Camphor wants to be left alone to view and treat sentient animals as mere ‘faunal biological resources.’ Whatever one’s views on humanity’s relationship to nature, we can all surely agree that our duty of care towards animals minimally requires avoiding cruelty?
Original source: 2024-09-13-ross-harvey-when-industry-interest-trumps-wellbeing